In light of recent developments that many view as limiting the availability of class action relief, these issues will continue to be intensely litigated. For example, based on legislative findings of abuses in class action practice in state courts, the Class Action Fairness Act of 2005 (CAFA) was passed, permitting defendants to remove class actions to federal court that previously may have been subject to less stringent state court standards for certifying a class. More recently, the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), established that claims for individual money damages may be certified under Rule 23(b)(2) only in extremely limited circumstances, and the decision announced a more restrictive view of the meaning of a “common question” for purposes of Rules 23(a) and 23(b)(3) analyses.
The Court has also accepted review of a number of cases this term that many lawyers believe may pose further challenges for plaintiffs’ class action lawyers. For example, in Standard Fire Insurance v. Knowles, No. 11-1450, the Court will decide whether plaintiffs can avoid removal under CAFA by providing an affidavit attempting to limit the damages sought to less than $5 million. In Comcast v. Behrend, No. 11-864, the Court will decide the extent to which plaintiffs need to support requests for class certification with admissible evidence, including expert testimony.
Amid an apparent trend limiting class actions by Congress and the federal courts, the “vindication of rights” argument left open by Concepcion is a critical issue for class action lawyers and the courts. The Court’s recent decisions in this area and its view of the FAA are likely to make this an uphill fight for plaintiffs, but the battles are just getting under way.
Overview of Concepcion’s Impact—The Preeminence of the FAA
The Supreme Court has focused on class actions in the arbitration context in recent years. The Court has traditionally favored enforcement of arbitration provisions, reinforcing a federal policy favoring arbitration. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). The Court’s recent focus began with Green Tree Financial Corp. v. Randolph, 531 U.S. 79, 90 (2000), a decision that may have an impact on the “vindication of rights” argument. In Green Tree, the Court addressed whether an arbitration agreement could be applied to a plaintiff’s claim under the Truth in Lending Act where it did not address arbitration costs. The Court held that federal statutory claims may properly be resolved in arbitration, but where the plaintiff presented no evidence that she would incur prohibitive costs in arbitration, the mere “risk” of prohibitive costs was too speculative to justify invalidation of the arbitration agreement. Id. at 90–91. Notably, the plaintiff in Green Tree simply claimed that she had limited financial resources and that the costs of arbitrating were “high.” The Court decided that invalidating an arbitration provision in these circumstances would undermine the FAA’s “liberal federal policy favoring arbitration agreements” but arguably left open the issue of whether an arbitration agreement could be declared invalid on “the ground that arbitration would be prohibitively expensive.” Id. at 92.
A few years later, the Court, in a 4–3–1–1 decision, reversed a South Carolina Supreme Court decision holding class arbitration to be permissible where the parties’ arbitration agreement was silent on whether such a procedure was allowed. Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003). The Court remanded the case for consideration by the arbitrator regarding the parties’ intent on class arbitration. Bazzle did not resolve, however, what rule the arbitrator should apply in deciding whether class arbitration is permitted.
In 2010, in Stolt-Nielsen S.A. v. Animalfeeds International Corp.,130 S. Ct. 1758 (2010), the Court again addressed whether parties could be compelled to arbitrate on a class-wide basis where an arbitration provision was silent on the issue. In Stolt-Nielsen, the Court held that “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Id. at 1775 (emphasis in original). Although it made clear that class arbitration could not be imposed absent agreement by the parties, the Court did not decide how arbitration provisions that expressly prohibited class actions would be addressed.
The Court turned to that precise question in Concepcion,where it addressed whether class action waivers in certain arbitration agreements were “unconscionable” or “unenforceable” on grounds of public policy. In Concepcion, the Court overturned a Ninth Circuit decision that held that the class action waiver in an AT&T service contract was unconscionable under California’s Discover Bank rule, which generally prohibited class action waivers in a consumer adhesion contract. See Discover Bank v. Super. Ct., 113 P.3d 1100, 1108–9 (Cal. 2005). The Court found that the FAA preempted the Discover Bank rule, reasoning that, because the FAA embodies a strong policy in favor of arbitration, state public policies like those animating the Discover Bank rule cannot supplant parties’ agreed-upon terms regarding the conduct of the arbitration. Id. at 1750–53.
Addressing the dissent’s concern that small-dollar claims would not be prosecuted without the possibility of class arbitration, the majority made clear that “[s]tates cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.” Id. at 1753. Yet, the Court expressly held that arguments against enforceability of an arbitration clause—based on, for example, contract formation or unconscionability—remain valid so long as the arguments were not based solely on the existence of a class action waiver. The Court in Concepcion was unconvinced that requiring individual arbitration would deprive the class representatives of the ability to pursue their claims. Id. at 1753. The Court noted that the arbitration agreement had a number of “consumer-friendly” provisions. For example, AT&T promised to pay claimants a minimum of $7,500 and twice their attorney’ fees if they obtained an arbitration award greater than AT&T’s last settlement offer. In those circumstances, the Court noted that the plaintiffs might, in fact, be “better off under their arbitration agreement with AT&T than they would have been as participants in a class.” Id. at 1753 (emphasis in original).
More recently, in CompuCredit Corp. v. Greenwood, 132 S. Ct. 665 (2012), the Court held that a plaintiff’s claims under the federal Credit Repair Organization Act (“CROA”) could be subject to bilateral arbitration. In doing so, the Court rejected the plaintiff’s argument that its claims under CROA were unique because of references in the statute suggesting Congress intended its provisions to be enforceable through private rights of action in court, and even through class actions. Id. at 669. The Court held that this statutory language did not evince a “contrary congressional command” overriding the federal policy favoring arbitration as demonstrated in the FAA. Id.
Finally, in Marmet Health Care v. Brown, 132 S. Ct. 1201 (2012), the Supreme Court vacated a decision of the West Virginia Supreme Court of Appeals, which held that pre-dispute arbitration agreements relating to claims of injury or wrongful death against nursing homes were unenforceable on public policy grounds. The Court explained: “West Virginia’s prohibition against predispute agreements to arbitrate personal-injury or wrongful-death claims against nursing homes is a categorical rule prohibiting arbitration of a particular type of claim, and that rule is contrary to the terms and coverage of the FAA.” Id. at 1203–4. Marmet did not involve a class action arbitration waiver, but the Court’s holding in a per curiam opinion underscores the Court’s view of the preeminence of the FAA.
Individual Arbitration and the Ability to Vindicate Statutory Rights
Stolt-Nielsen and Concepcion do not require that all class actions waivers are enforceable, but the boundaries of these decisions have been—and will continue to be—intensely litigated. For example, plaintiffs have tried to avoid having to arbitrate on an individual basis by arguing that arbitration generally does not permit discovery. See, e.g., Khan v. Orkin Exterminating Co., Inc., No. 10-02156, 2011 U.S. Dist. LEXIS 118486, at *10–11 (N.D. Cal. Oct. 12, 2011); Giles v. GE Money Bank, No. 11-434, 2011 U.S. Dist. LEXIS 111018, at *5 (D. Nev. Sept. 27, 2011); but see Hamby v. Power Toyota Irvine, No. 11-544, 2011 U.S. Dist. LEXIS 77582, at *2 (S.D. Cal. July 18, 2011) (granting plaintiff’s motion to conduct discovery regarding whether the arbitration agreement and class action waiver were unconscionable). Plaintiffs’ attorneys also have seized on language in Justice Thomas’s concurring opinion in Concepcion to challenge enforcement of arbitration agreements requiring individual arbitration on the ground that there was a defect in the formation of the underlying agreement. See, e.g., Saincome v. Truly Nolen of Am., No. 11-825, 2011 U.S. Dist. LEXIS 85880, at *12 (S.D. Cal. Aug. 3, 2011) (finding that plaintiff had not met its burden of demonstrating unconscionability); Palmer v. Infosys Techs. Ltd. Inc., 832 F. Supp. 2d 1341, 1345–47 (M.D. Ala. 2011) (refusing to enforce arbitration agreement because of formation defects). In addition, plaintiffs’ lawyers have tried to restrict application of Concepcion by arguing that the California law at issue in Concepcion and preempted by the FAA is different than the law in other states. See, e.g., Cruz v. Cingular Wireless, LLC, 648 F.3d 1205, 1213 (11th Cir. 2011).
For those keeping score, parties seeking to compel enforcement of arbitration agreements have generally been successful. See In re Checking Account Overdraft Litig., 459 F. App’x 855, 858–59 (11th Cir. 2012) (reversing district court’s finding that arbitration clause was unconscionable even after Concepcion); Green v. SuperShuttle Int’l, Inc., 653 F.3d 766, 769 (8th Cir. 2011) (holding that class action waiver was enforceable under Minnesota law); Litman v. Cellco P’ship, 655 F.3d 225, 230 (3d Cir. 2011) (holding that FAA preempted a New Jersey law that seeks to impose class arbitration despite a contractual agreement for individualized arbitration); Quilloin v. Tenet HealthSystem Phila., Inc., 673 F.3d 221, 232–33 (3d Cir. 2012) (holding that the FAA “surely” preempts Pennsylvania common law deeming class action waivers substantively unconscionable and singling out arbitration agreements); Fensterstock v. Educ. Fin. Partners, No. 08-03622, 2012 WL 3930647, at *7 (S.D.N.Y. Aug. 30, 2012) (holding that arbitration provision was not unconscionable based on a lack of mutuality, i.e., that defendant was unlikely to bring a class action); In re Apple & AT&T iPad Unlimited Data Plan Litig., No. 10-2553, 2011 U.S. Dist. LEXIS 78276, at *9–14 (N.D. Cal. July 19, 2011) (applying Concepcion and rejecting plaintiffs’ argument that arbitration agreement was unconscionable). Defendants have not achieved complete success, however. See, e.g., NAACP of Camden Cnty. E. v. Foulke Mgmt. Corp., 24 A.3d 777, 800 (N.J. Super. Ct. App. Div. 2011); Grosvenor v. Qwest Corp., 854 F. Supp. 2d 1021, 1034 (D. Colo. 2012).
Most recently, the action has focused on the extent to which a court might refuse enforcement of an arbitration clause where a class waiver might, as a practical matter, prevent litigants from vindicating their statutory rights. The issue has given rise to a number of conflicting opinions, including a split between the Second and Ninth Circuits regarding federal statutory rights.
The Vindication of Federal Statutory Rights
The Second Circuit addressed the question in In re American Express Merchants Litigation (Italian Colors) (American Express III),667 F.3d 204 (2d Cir. 2012), holding that a class action waiver is not enforceable where plaintiffs demonstrate that the practical effect of enforcing the provision precludes plaintiffs from vindicating their federal statutory rights. The plaintiffs brought a collection of putative class actions alleging antitrust violations under the Sherman Act relating to American Express’s merchant discount fees. As the Second Circuit framed the inquiry, Stolt-Nielsen and Concepcion left open the question of “whether a mandatory class action waiver clause is enforceable even if the plaintiffs are able to demonstrate that the practical effect of enforcement would be to preclude their ability to bring federal antitrust claims.” Id. at 214.
The court analyzed decisions acknowledging that large arbitration costs might prevent vindication of federal statutory rights. American Express III, 667 F.3d at 214–15 (discussing Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 90 (2000) (stating in dicta that when “a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs”); Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614, 637 (1985) (stating that if clauses in a contract amount to a “prospective waiver of a party’s right to pursue statutory remedies for antitrust violations, we would have little hesitation in condemning the agreement as against public policy)). Whereas Green Tree focused on the cost of arbitration as opposed to litigating in court, the Second Circuit applied that discussion to the comparative impact of bringing an antitrust claim as an individual rather than in a class action.
The costs of litigating an antitrust claim—not the costs of arbitration as in Green Tree —persuaded the Second Circuit to hold that the arbitration provision was unenforceable. The plaintiffs provided the court with an affidavit from an economist, who opined that it would not be “economically rational” for a merchant to pursue the case individually. Id. Accepting the unrebutted evidence, the Second Circuit concluded: “Thus, as the class action waiver in this case precludes plaintiffs from enforcing their statutory rights, we find the arbitration provision unenforceable.” Id. at 218–19. The court, however, emphasized that it was not announcing a rule that “[class action waivers] are per se unenforceable in the context of antitrust actions” but that “each waiver must be considered on its own merits, based on its own record, and governed with a healthy regard for the [policy of] the FAA.” Id. at 219.
In Fromer v. Comcast Corp., No. 09-2076, 2012 U.S. Dist. LEXIS 117807 (D. Conn. Aug. 21, 2012), the district court applied the Second Circuit’s decision in American Express III to invalidate a class action waiver as applied to a claim under the Sherman Act, where plaintiff produced evidence (an economist’s declaration) explaining that the expert services necessary to prepare the case would cost hundreds of thousands of dollars, whereas plaintiff could not expect more than $165 for his own claim. Id. at *17–18. The court found that “because the class action waiver in this case effectively precludes Fromer from pursing federal statutory remedies, the class arbitration waiver is void.” Id. at *17. Other courts in the Second Circuit have reached similar conclusions. See, e.g., Chen-Oster v. Goldman Sachs & Co., No. 10 Civ. 6950, 2011 WL 2671813, at *2–5 (S.D.N.Y. July 7, 2011). It is noteworthy that Fromer distinguished the plaintiff’s state law claims under the Connecticut Unfair Trade Practices Act, holding that under American Express III, the inability to pursue those claims was not a basis for holding the arbitration agreement unenforceable. Id. at *18–21; see also Orman v. Citigroup Inc., No. 11-7806, 2012 WL 4039850, at *3–4 (S.D.N.Y. 2012) (dismissing a putative data security class action of state law claims against Citigroup on the grounds that the vindication of rights argument applies only to federal claims and that applying the analysis to state claims would be incompatible with Concepcion).
Based on a starkly different interpretation of Concepcion than the Second Circuit’s in American Express III, the Ninth Circuit reached a different result in Coneff v. AT&T, 673 F.3d 1155 (9th Cir. 2012). In Coneff, the plaintiff, alleging claims under the Federal Communications Act and state consumer protection statutes, argued that Mitsubishi and Green Tree “require arbitration of statutory rights only if a prospective litigant effectively may vindicate those rights in the arbitral forum.” Id. at 1158 (internal quotations omitted). Rather than narrowly construing Concepcion as the Second Circuit did, the Ninth Circuit explained that “Concepcion is broadly written.” Id. at 1158. Further, the Ninth Circuit noted that, as in Concepcion, the arbitration agreement had “consumer-friendly” provisions that enabled individual plaintiffs to pursue their claims in arbitration and that the Concepcion Court’s majority expressly rejected the argument that “class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system.” See id. at 1158 (citing Concepcion, 131 S. Ct. at 1753). The Ninth Circuit thus concluded that Concepcion simply precludes consideration of such policy concerns, resulting in a circuit split that soon may be ripe for review by the Supreme Court. See In re American Express Merchants Litig., 681 F.3d 139, 149 (2d Cir. 2012 ) (Cabranes, J., dissenting) (stating that the issue at hand is indisputably important, creates a circuit split, and . . . should be resolved by the Supreme Court).
The Vindication of State Statutory Rights
Courts confronting the argument that a class mechanism is necessary to vindicate state statutory rights have generally rejected this argument as barred by Concepcion, even in cases where the plaintiff has compiled a substantial evidentiary record establishing that it is very unlikely an attorney would take a case involving only a small-dollar individual arbitration. Only a few courts have held otherwise.
In recent opinions, two circuit courts expressly rejected the argument that Concepcion is inapplicable in cases in which a class proceeding is necessary to vindicate the plaintiff’s rights under a state statute. See Homa v. Am. Express Co., No. 11-3600, 2012 WL 3594231 (3d Cir. Aug. 22, 2012); Pendergast v. Sprint Nextel Corp., 691 F.3d 1224 (11th Cir. 2012). In Homa, a case brought under the New Jersey Consumer Fraud Act, the Third Circuit rejected the argument even though the plaintiff had compiled an “extensive record,” establishing that an attorney would not take small-dollar consumer fraud claims on an individual basis, and accepting “the premise” that Homa could not vindicate his statutory rights absent a class mechanism. Id. at *4. The court found that the ease with which such evidence could be replicated could render millions of arbitration agreements unenforceable, which would be “absolutely inconsistent” with the FAA’s policies of favoring and promoting arbitration. Id. (quoting Concepcion, 131 S. Ct. at 1748).
Homa extended the Third Circuit’s holding in Litman v. Cellco Partnership, 655 F.3d 225 (3d Cir. 2011), in which the court rejected the plaintiff’s argument, made without evidentiary support, that the plaintiff could not vindicate his statutory rights on an individual basis.
The Eleventh Circuit took a similar view in Pendergast. The plaintiff, alleging a claim under the Florida consumer fraud statute, argued that the class action waiver in his arbitration clause “precludes him and other Sprint customers from obtaining meaningful relief because their claims cannot, as a practical matter, be pursued individually.” 691 F.3d at 1234. The Eleventh Circuit rejected this argument as squarely at odds with Concepcion and its own decision in Cruz v. Cingular Wireless, LLC, 648 F.3d 1205 (11th Cir. 2011). In both Pendergast and Cruz, the plaintiffs submitted “affidavits from Florida consumer law attorneys stating it would not be cost-effective to pursue the plaintiffs’ claims against [defendant] except on a class-wide basis and statistical evidence about the number of [defendant’s] customers who arbitrated claims against it.” Pendergast, 691 F.3d at 1235. Like the Third Circuit, the Eleventh Circuit found such evidence insufficient to avoid arbitration. Id. (finding “faithful adherence to Concepcion requires the rejection of the Plaintiffs’ argument” because the “Plaintiff’s evidence goes only to substantiating the very public policy arguments that were expressly rejected by the Supreme Court in Concepcion”).
Although most federal circuit courts have rejected it, the vindication of state statutory rights theory has gained some traction elsewhere. For example, in Brewer v. Missouri Title Loans, 364 S.W.3d 486 (Mo. 2012), cert. denied, 81 U.S.L.W. 3161 (Oct. 1, 2012) (No. 11466) , the Missouri Supreme Court held that an arbitration agreement in a contract between a consumer and a title company was unconscionable under Missouri law. The court recognized that, under Concepcion, the arbitration agreement could not be invalidated simply on the basis that it contained a class waiver. Id. at 487. But it found that, after Concepcion, traditional state law defenses to formation of a contract (including unconscionability) could still be applied to arbitration agreements as a whole. The Missouri Supreme Court considered contract formation issues but focused mainly on the plaintiff’s evidence showing that it was “unlikely that a consumer could retain counsel to pursue individual claims” in arbitration, so that the class waiver would effectively prohibit consumers from bringing any claims at all.” Id. at 494. Such affidavits were very similar to the evidence the Third and Eleventh Circuits found irrelevant in light of Concepcion.
Perhaps the most uncertainty over the state statutory rights theory exists in California. California state and federal courts have repeatedly faced the question of whether Concepcion overruled not only Discover Bank but also the California Supreme Court’s decision in Gentry v. Superior Court, 165 P.3d 556 (Cal. 2007), in which it held a class action waiver unenforceable in a claim brought under the California Labor Code Private Attorney General Act (PAGA). Gentry turned on whether the plaintiff could vindicate his statutory rights without a class mechanism. Gentry, 165 P.3d at 568. The California Supreme Court held that a class action waiver in an arbitration clause that resulted in a “de facto waiver” of an “unwaivable statutory right” (the right to overtime pay under the California Labor Code) was unenforceable. Id. at 563, 569. Although the issue of Gentry’s validity has most often arisen in the context of PAGA claims, Plaintiffs have also argued its vindication of public rights analysis applies in the consumer fraud context. See Murphy v. DirecTV, Inc.,No. 07-06465,2011 WL 3319574, at *4(C.D. Cal. Aug. 2, 2011); Boyer v. AT&T Mobility Servs., LLC, No. 10-1258, 2011 WL 3047666, at *3 (S.D. Cal. July 25, 2011) (granting defendant’s motion to compel arbitration of claims under California Consumer Legal Remedies Act).
Some courts in California have concluded that Concepcion did not overrule Gentry’s holding that a public right created by statute cannot be effectively waived by barring class proceedings. E.g., Brown v. Ralph’s Grocery Co., 128 Cal. Rptr. 3d 854, 856 (Cal. Ct. App. 2011); Urbino v. Orkin Servs. of Cal., Inc., No. 11-6456, 2011 WL 4595249 (S.D. Cal. Oct. 5, 2011). These courts have reasoned that “the fundamental nature and purpose” of a PAGA claim is to vindicate a “public right” (the right to overtime pay). Urbino, 2011 WL 4595249, at *11. The Brown court contrasted this with the “private individual right of a consumer to pursue class action remedies in court or arbitration, which right, according to AT & T may be waived by agreement so as not to frustrate the FAA—a law governing private arbitration.” Brown, 128 Cal. Rptr. 3d at 861.
More commonly, however, California courts have concluded, in cases involving consumer fraud claims as well as employment claims, that Concepcion implicitly overruled Gentry. Some courts have reasoned that Gentry’s holding does not survive Concepcion because its statutory rights analysis is grounded in state public policy concerns and therefore is not a proper basis to invalidate a class waiver. See Iskanian v. CLS Transp. Los Angeles, LLC, 142 Cal. Rptr. 3d 372, 380 (Cal. Ct. App. 2012) (finding that whether a plaintiff brought a class action “‘to vindicate statutory rights’ is irrelevant in the wake of Concepcion” because state policy cannot require a procedure that is inconsistent with the FAA). Other courts have found that the Gentry rule is targeted specifically at arbitration agreements and therefore is preempted by the FAA. See Lewis v. UBS Fin. Servs., Inc., 818 F. Supp. 2d 1161, 1167 (N.D. Cal. 2011) (Gentry “advances a rule of enforceability that applies specifically to arbitration agreements, as opposed to a general rule of contract formation”); see also Murphy,2011 WL 3319574, at *4. The California Supreme Court granted review in the Iskanian case and will expressly consider whether Concepcion impliedly overruled Gentry in the context of “non-waivable labor law rights.”
Conclusion: The Path Ahead
The existence of class action waivers in arbitration provisions will continue to generate litigation. Plaintiffs will continue to challenge such provisions, and defendants will want to be vigilant about ensuring that their agreements are drafted to reflect the most recent case law to withstand judicial scrutiny. The prevalence of the “vindication of rights argument” will likely lead to an increased focus on the costs of litigating certain kinds of cases and the costs of arbitrating those cases on an individual basis, as well as what constitutes appropriate evidence of such costs. Plaintiffs’ lawyers and consumer groups may ultimately take this fight and others regarding arbitration to Congress, but such a path is fraught with difficulty.
One thing seems clear, though: Class action issues will remain hot.
Keywords: litigation, class action, derivative suits, class action waiver, Class Action Fairness Act of 2005, California Discover Bank rule, Federal Arbitration Act, Federal Rule of Civil Procedure 23, unconscionability